Shepard Davidson · Renee Inomata

Specificity and Detail in Liability Waivers Are Critical

Two years ago, in Concerns About Tort Claim Waivers I wrote about how important it was to be specific in your liability waivers to ensure you have as much protection as possible. A recent decision by the Massachusetts Superior Court in Miller v. YMCA re-confirms that proposition.

According to the decision in Miller, Thomas Miller was a member of the “Silver Sneakers,” a YMCA program designed to promote membership among older people. On January 2, 2012, Mr. Miller went to his local YMCA to work out, and approximately an hour after checking in at the front desk, he was found lying unconscious on the floor of the steam room, with hot steam blasting his body.

Mr. Miller was taken by ambulance to the hospital where he was diagnosed with second-degree burns covering 12-15% of his body, including his face. He underwent multiple surgeries, but died about three weeks later.

Later that year, a lawsuit was filed by Mr. Miller’s estate and at least one beneficiary against the YMCA and various individuals for negligence and gross negligence. The defendants moved to dismiss those claims based on a liability waiver Mr. Miller had signed. Significantly, however, while that waiver absolved the “Silver Sneakers” program, it did not mention the YMCA or any of the individuals who were defendants in the suit. The waiver went on to state as follows:

I hereby release, waive, discharge and covenant not to sue…from any and all demands, liabilities, losses and demands (including death), caused … by the negligence of any of the foregoing people or entities.

Even though the Superior Court Judge acknowledged that the waiver likely was intended to apply to the YMCA, he ruled that because the language did not mention the entity, the YMCA could not invoke the waiver as a defense. The Judge went on to say that even if the wavier was deemed ambiguous, this would not have helped the YMCA, because an ambiguous document is construed against the drafter.

As we all know, the practical reality is that liability waivers are seldom carefully reviewed and are almost never questioned or negotiated. Thus, in the case of such documents, the normal process of preparing a concise and succinct memorandum may not be the best practice. Instead, in-house counsel who are tasked with drafting such a document likely will better serve their clients by making sure that all possible bases are covered (and even covered multiple times and in multiple ways). If that means you might end up with a document that is viewed as repetitive or exhaustive, running such a risk seems to be a much safer than running the risk of having a waiver that does not fully protect your client.

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About the In House Advisor

Shepard Davidson

Shepard Davidson

sdavison@burnslev.com Shep is a partner in and former Co-Chair of the Business Litigation group at Burns & Levinson. Shep concentrates his practice in the areas of complex business torts, contract claims, real estate disputes, and employment disputes.

Renee Inomata

Renee Inomata

rinomata@burnslev.com Renee is a Partner in and Chair of the Employment practice at Burns & Levinson. She has also litigated various employment disputes in state and federal courts and agencies.